The Care Act 2014: a missed opportunity?

Tabitha Collingbourne

Abstract

This paper examines the Care Act 2014 in relation to the requirements of the UN Convention on the Rights of Persons with Disabilities 2006, in particular those of Article 19, the right to live independently and be included in the community. It finds that the Act’s overarching principles are broadly compatible with the Convention and that its legislative framework constitutes a significant improvement on previous provisions. The paper argues, nonetheless, that an opportunity to enact legislation which fully implements Article 19 in England has been missed. Article 19 is a ‘hybrid’ right: it melds together civil and political rights to autonomy and inclusion with the socio-economic right to support services essential for their exercise. In England, by contrast, the provision of services continues to be understood not as ‘right’ but as ‘welfare’ entitlement. The ‘paradigm shift’ from a welfare to a rights approach to disability which is the fundamental purpose of the Convention is thus not fully accomplished. As a result, it is argued, there is no recognition in the Act of a right to live independently and be included in the community; and further gaps in compliance with the Convention arise. Vital areas where further development is required include commitment to progressive realisation of the socio-economic elements of Article 19 to the maximum of available resources; effective monitoring and redress systems; and full central government accountability. The paper concludes that the opportunity provided by development of the Care Act 2014 to enact CRPD-compliant legislation to implement Article 19 has been missed. The support services essential for the exercise of Article 19 remain vulnerable to retrogression, unmonitored and unenforceable. As a result, Article 19 does not have full domestic legal effect in England, calling into question implementation here of the Convention as a whole.